Case: R v Ballantyne, 2015 SKCA 107 (CanLII)
Keywords: Identification Evidence; Corroboration Evidence; Errors of Law; Crown Appeal; s. 686(1)(b)(iii) of the Criminal Code;
December 23, 2011, a man wearing a baseball cap and sunglasses robs a bank in Prince Albert, Saskatchewan. The event is captured on bank video recording equipment. $1,845.00 stolen.
At trial, the identity of the robber (man wearing baseball cap and sunglasses) is the central issue. Mr. Michael Benjamin – an alleged accomplice – identified himself in the bank video and states Mr. Ballantyne is the man in the cap and sunglasses.
In light of Mr. Benjamin’s penchant for dishonesty (well-documented history telling untruths to police including on the day of the robbery), the trial judge looks for corroboration of his identification of Mr. Ballantyne as the robber.
Sgt. Troy Dumont testifies that he has known Mr. Ballantyne for 13 years and can identify him in the bank video. The trial judge is unconvinced following thorough cross examination by defence counsel; calls Sgt. Dumont’s evidence less than “compelling”.
Ultimately, the trial judge does not find the bank video serves as corroborative evidence of Mr. Benjamin’s identification either. Mr. Ballantyne is acquitted; the trial judge finds reasonable doubt as to guilt.
The underlying issue of the Crown’s appeal is whether the Crown can point to an error of law sufficient to warrant a new trial or whether the Crown is really attempting to appeal an “unreasonable acquittal” – something it has no right to do.
The Crown raises the following grounds:
- the trial judge erred by considering evidence piecemeal; failing to consider Sgt. Dumont’s evidence confirming Mr. Benjamin’s testimony;
- the trial judge misapprehended the law in relation to corroboration; did not consider Sgt. Dumont’s evidence and the bank video as confirmatory; and
- the trial judge erred by preventing the Crown from cross-examining Mr. Benjamin with respect to post-offence conversation with Mr. Ballantyne.
The Court of Appeal concludes the trial judge erred in law. The acquittal is set aside, and a new trial ordered.
Failing to Consider Sgt. Dumont’s Evidence
The Court of Appeal held the trial judge’s treatment of Sgt. Dumont’s evidence revealed two errors:
1) the failure to identify corroborative evidence; and
2) the failure to consider evidence cumulatively
The Court quickly dealt with the suggestion that this ground was merely Crown argument the acquittal was unreasonable. Citing R v B.(G.), 1990 CanLII 115 (SCC),  2 SCR 57 at 71 [B.(G.).]; R v Kheler, 2004 SCC 11 (CanLII) at para 15,  1 SCR 328; R v Khela, 2009 SCC 4 (CanLII) at paras 38–43,  1 SCR 104 [Khela] (see also R v Chayko (1984), 1984 ABCA 80 (CanLII), 31 Alta LR (2d) 113 (CA) at paras 6 and 23 and R v Drabinsky, 2011 ONCA 582 (CanLII) at paras 139 and 140, 274 CCC (3d) 289 (leave to appeal refused,  SCCA No 491 (QL)), the Court of Appeal held that whether evidence is capable of confirming the testimony of an untrustworthy witness is a question of law.
For Jackson J.A., it was apparent from the reasons that the trial judge did not appropriately consider Sgt. Dumont’s evidence; determine it was capable of confirming the evidence of Mr. Benjamin (an alleged accomplice of Mr. Ballantyne).
Simply put, the first error described by the Court of Appeal was the failure of the trial judge to consider whether Sgt. Dumont’s evidence that Mr. Ballantyne was the person in the video (and the video by itself), taken together, could support the credibility of Mr. Benjamin’s independent identification of Mr. Ballantyne.
For the Court of Appeal it was not enough the trial judge found Sgt. Dumont’s evidence was not “compelling” – ultimately the trial judge refused to find he was “untruthful” and, therefore, the evidence remained capable of confirming a material aspect of Mr. Benjamin’s evidence (note: this despite the fact the trial judge explicitly refused to accept Mr. Benjamin’s evidence).
Consequently, the Court of Appeal found Sgt. Dumont’s evidence was capable of serving either as independent evidence of the identity of the robber (Mr. Ballantyne) or to corroborate Mr. Benjamin’s ‘evidence’ – it was an error of law to not consider or reconsider Sgt. Dumont’s evidence when he weighed Mr. Benjamin’s evidence, notwithstanding his dubious status as a liar and career criminal.
Treatment of the Video
For the Court of Appeal, the trial judge “appears” to have concluded the bank video was the actual source of Mr. Benjamin’s story. In other words, there was no authentic recounting of the robbery from Mr. Benjamin.
On this theory, the true source of Sgt. Dumont’s information was the bank video. This information was then fed to Mr. Benjamin through the police interrogation of Mr. Benjamin by individuals who had seen the video and, therefore, the fact Mr. Benjamin’s story matched events on video should be no surprise – certainly not compelling evidence of the accused’s guilt.
For the Court of Appeal, despite the trial judge’s position with respect to the circular nature of Crown evidence, it was inappropriate to reject the bank video outright and not consider it as an independent piece of evidence capable of corroborating Mr. Benjamin’s identification evidence.
Alternatively, the Court of Appeal held the trial judge failed to consider the video carefully as part of his function to consider the evidence as a whole.
Treatment of Post-Offence Conversation Evidence
The Court of Appeal found the trial judge erred by preventing Crown counsel asking questions of Mr. Benjamin with respect to his alleged conversation with Mr. Ballantyne after the robbery.
Statements made by an accused person to their alleged accomplices are not captured by the rule against the admission of hearsay, and are admissible as per R v Simpson, 1988 CanLII 89 (SCC),  1 SCR 3 at 21; and R v S.G.T., 2010 SCC 20 (CanLII) at para 20,  1 SCR 688.
Unfortunately for Mr. Ballantyne, the Court of Appeal also held that s. 686(1)(b)(iii) of the Criminal Code does not apply to a Crown appeal from acquittal – although the Court accepted curative “principles” remain relevant to the analysis.
Crown Burden to Set the Acquittal Aside
In order to obtain a new trial, the Crown must satisfy the appellate court that the error (or errors) might reasonably be thought to have had a material bearing on the acquittal. That being said, there is no requirement to persuade the Court that the verdict would necessarily have been different (see R v Graveline, 2006 SCC 16 (CanLII) at para 14).
The Court of Appeal found the Crown had met this burden, set aside the acquittal and directed that a new trial occur. The Court was careful to mention that this decision in no way ensures a conviction follows automatically. Rather, the specific instruction going forward is that the trial judge must properly balance the testimony of Sgt. Dumont, the bank video, and determine the weight to be given to Mr. Benjamin’s identification of his alleged accomplice Mr. Ballantyne.
Counsel for the Appellant: Andrew Stuart Davis (Justice (SK), Min. of)
Counsel for the Respondent: Bruce Campbell (Legal Aid Saskatchewan)